Posted
by
kdawsonon Monday May 17, 2010 @06:58PM
from the going-somewhere? dept.

An anonymous reader points out the news that the US Supreme Court today upheld a law that allows the federal government to keep prison inmates behind bars beyond the end of their sentences, if officials determine they may be "sexually dangerous" in the future. The case involves one Graydon Comstock, who was certified as "dangerous" six days before his 37-month federal prison term for processing child pornography was to end. The vote was 7 to 2. Three of the justices who concurred with the decision raised an objection to the broadness of the language used in the majority opinion, written by Justice Kennedy.

If it can be over applied, it almost certainly will be. As a great example look at California's "3 strikes" law. It was sold as a law that would get the worst repeat offenders gone. After all, if you've committed 3 serious crimes, it is clear jail isn't doing anything in terms of rehabilitation or deterrence, it is just time to remove you so you can't commit crimes. Sounds good... Except that it gets applied to all sorts of things. There is a guy who's in prison for life with his 3rd strike being a shoplifting charge. As such the jails there are extremely overcrowded and the federal government is having to step in and force them to release people because the conditions are so bad.

Well, that is just what happens. Also, it tends to happen even worse whenever sex is involved. Sex crimes have the ability to cause a total brain shutdown in much of the population. You say "sex offender" and people automatically think "Forcible rape of a young child." So any proposed law that is anything but the toughest possible on "sex offenders" gets outrage as a response because you aren't "Protecting the children."

The "sexually dangerous" standard is just a semantics trick that allows the government to classify any sex offender as sexually dangerous to keep them imprisoned indefinitely. There's no due process involved in declaring a person as sexually dangerous, so it applies to anybody the government wants it to.

Yes but in Canadian law, the person that is being subject to indefinite detention must go through a legal process through a judge, that is separate from the trial for the actual crime. In a specific case that I am aware of; Paul Bernardo, the application by the crown (prosecution here in Canada) was submitted at the time that he was convicted and sentenced. The danger here is that the state would summarily prevent release after the individuals sentence was completed, without any form of recourse by the convicted person. This could be used as a way to extend a sentence based on the political will of the time.

If the state wants to incarcerate people for life without parole, then they should have to sentence them to that, rather than giving them less and then just keeping them incarcerated.

Can you provide some citations for that? It's always been my experience that it costs far, FAR more to execute someone than to imprison them for life when you take into account that the appeals process is expensive.

The decision today doesn't have anything to do with the the fundamental ability of the government to indefinitely detain sex offenders after they've served their sentence. The court decided that back in 1997 in Kansas v. Hendricks. Todays decision was just about whether the federal government has such power. This is a federalism case, not an individual rights case.

There's a well-known case about a psychologist (sorry forget his name... it was back in the 60s), who deliberately acted insane to get himself committed. He wanted to see what it was really like to live in the asylum. Problem: When he decided his observations were done, and he tried to prove he was "sane" to the staff and just doing an experiment, nobody listened to him. They refused to let him out.

No government, no corporation, no person should have that kind of power. There needs to be a point where that power ends (prison term has ended), and the person is allowed to be free, rather than enslaved for life.

BTW:

The psychologist did eventually get out, but it required a lawsuit and the backing of his university; else he probably would have died there. A sane man trapped inside a flawed system.

Part of the reason that they're dangerous when they get out is that prisons in large measure devolve into clan-based behaviors, though gangs are what form. A huge portion of them, maybe the majority, are racist, and a lot of people in for the first or second time join them just for safety. This isn't an easily-handled problem, either; while inmates have strongly-restricted rights, the guards are generally fine with letting them talk with whomever they please as long as they're not causing problems, because getting in between can itself cause problems. Supermax facilities don't have this issue to as great an extent, but they're hugely expensive to build and operate, and there are concerns over what it does to the inmates psychologically. For those in for life, that doesn't matter as much, but for those with lesser sentences, it may warp them at least as much as belonging to a gang.

given Alabama is putting EVERYONE on the damn sex offender list AND the Supreme court upheld that
i see this as being VERY BAD for ANYONE in or near Alabama Texas used to be the dont fuck up state now it looks like Alabama is the one you want to avoid

Look at the Lawrence Taylor case... he paid for sex with a young woman, may or may not have known she was underage, and now he is labeled a "rapist" and a "sex offender". Bad judgment and criminal activity, sure... but was rape really his intent?

You should a child rapist be put in prison for any longer than any other sort of rapist? How is it any more acceptable to rape a 21 year old woman than it is a child? This sounds like a typical 'OMG, we must protect the children' hysteria that clouds and distorts this sort of discussion. I don't care if you rape a 3 year old girl or a 35 year old man who is a master of 14 martial arts, a persons degree of ability to defend themselves does not mitigate the crime.Ummm, see Duke Lacrosse fiasco, and several other times when rape isn't violent and consent believed to have been given. A 3 year old girl is in no way capable of giving consent whereas a 35 year old man could and then after the fact change his mind and claim consent wasn't given. So unless you are prepared to get a signed notarized affidavit of consent prior to every sexual encounter be careful how much you wish to place all rapists in the same boat. See also viral nature of child molestation, 35 yr men who are raped rarely run around raping others. Children who are molested can become molesters as adults.

( I wasn't talking about the SCOTUS, I was responding with an explanation of the cognitive dissonance of our public with emphasis on our legislators, who should lead by example.

You're the one who's insinuating. And it's a rather cheap shot -- shouldn't a person with a 4-digit ID be posting insightful and informative comments rather than trying to bring others down with nitpicking? )

"In fact" they are not. Children are scientifically defined as the juvenile *sterile* member of a species. 14 year olds are not sterile..... they have become adults in the biological and natural sense.

Now if you want to argue a 14 year old is an inexperienced human being, I will concur with that. But I won't call him or her a child. It's simply not true.

U.S. Supreme Court in Shaughnessy v. U.S. ex rel Mezei in 1953 held that the US Government had the authority to incarcerate "excludable aliens" indefinitely without trial. http://www.inmotionmagazine.com/mariel.html [inmotionmagazine.com] discusses one long-running example. So you're wrong to claim that "never before in memory" has SCOTUS held that the government has such authority.

Well, despite what Dick Cheney said, there was no due process for sending people to Guantanamo. A lot of people got sent to Guantanamo because somebody turned them in (at best hearsay evidence, and often paid-for "testimony") or because they got rounded up for being in the wrong place at the wrong time. For 5 years there was no judicial review of any kind for Guantanamo inmates. In contrast, for somebody to be covered by this ruling, it would appear that they would have to have been convicted of at least one serious sexually-related crime. So there is a significant difference and you are proposing a false equivalence.

Notably, most of the five plaintiffs in this case were not "horrible child molesters" but rather men who had been convicted of possession ("receipt") of child pornography. There is no evidence that they have committed or will commit any violent crime. The Attorney General could just as easily use this doctrine to lock up a man who urinated against a building, if his stream crossed over state lines.

I have a family member who is a pedophile and I believe that the treatment he receives both in public circles and legal circles is appalling.

His crime is "victimzing" 17 still images that were taken legally in Europe during the 1960s and he is treated like dirt. He's been nearly killed several times, he has been reported to police by well-meaning therapists for "intuition" that he might have a "victim" in mind (who turned out to be his niece, who he would never EVER be alone with, by his own choice). Then he's subjected to hours of interrogation, all for some court-mandated shrink's "hunch". He's been put through procedures such as "covert desensitization" as part of mandatory therapy and has been forced to submit to polygraphs and plethismographs on a quarterly basis. Each time, they engineer the situation to be as humiliating as possible as this is supposed to be "theraputic". They require he keeps a lot of all of his sexual dreams and fantasies and ten times daily, repeats a series of phrases to himself, designed to make him question his every thought.

He's been beat by prison guards and prisoners alike he has been harassed weekly since getting out, has had his car windows smashed by "perverted justice" goons trolling the sex offender registries and has been fired from positions that have ABSOLUTELY NOTHING to do with children, or sex, or anything, simply because people find out what he was charged with and they say "AWWW GROSSSS"

He was once a powerful person, soft spoken, empathic and friendly. Now he just doesn't look anyone in the eye and he can hardly bring himself to join a conversation.

See, this is why we don't allow victims (or their family) to set sentencing guidelines and also why the offender's family shouldn't as well. This is also why sex offender registries are NOT PUBLIC in almost all other civilized countries. In fact they're outright illegal in a number of EU countries. (see the massive anti-registry public protest in Sweden last year against a privately run website)

Remember, they're people too, even if you have conveniently decided to classify them as something less in your mind....

the ruling seems to be that a civil commitment can be ordered after the jail term is served

The problem here is authorized power. The government can, and does, define its own rules to break the constitution. Civil commitment post term served adds to the punishment. Any claim that it does not is purest sophist nonsense. Therefore, it too is ex post facto, and UNAUTHORIZED -- now, unauthorized, as we see, has very little effect on the government. That is why the commerce clause has been inverted, that is why judges have taken unto themselves the essential power only AUTHORIZED by article five (amendment), and why ex post facto laws are being enacted, and why detention without lawyer, phone call, etc., and why your email is being monitored, all of this is happening as a consequence of CLEARLY unauthorized power...

You can't "read the opinion" to solve this problem. You're asking the vampire why it's ok to drink your blood. It's wrong *by definition* because IT ISN'T AN AUTHORIZED POWER.

So what do we have? We have UNAUTHORIZED POWER. Look it in the eye and recognize it for what it is.

Lawyers, judges, lawmakers -- they're all complicit in this scheme to circumvent the constitution. And meanwhile, the law schools churn out more robots who have been convinced that the constitution can be circumvented by dancing on the head of a pin. Look at Obama - a self-proclaimed "constitutional scholar", and HE thinks the second amendment doesn't give the citizens a right to bear arms, and further, he thinks that the government -- somehow -- has the power to say otherwise. Which, you'll note, is nowhere in the constitution.

The bottom line is this:

When the constitution says NO, then the answer is NO. If the government wants to change that answer, then the process is laid out in article five, Amendment. Otherwise, the answer REMAINS NO.

So until there are amendments that say otherwise, you can keep and bear arms (and that's more than guns, people.) You can say anything you want, and that includes in a crowded theater. But the thing is, the government will use UNAUTHORIZED power to punish you for not recognizing the powers it has STOLEN. No one will give up their comfy life in order to put down the uprising in the judiciary and the congress; and therefore, this constitutional republic will continue to erode at a very rapid pace.

Read the decision. This is not a Due Process decision. From the decision:

The District Court, accepting two of the respondents'
claims, granted their motion to dismiss. It agreed with
respondents that the Constitution requires proof beyond a
reasonable doubt, id., at 551-559 (citing In re Winship,
397 U. S. 358 (1970)), and it agreed that, in enacting the
statute, Congress exceeded its Article I legislative powers,
507 F. Supp. 2d, at 530-551. On appeal, the Court of
Appeals for the Fourth Circuit upheld the dismissal on
this latter, legislative-power ground. 551 F. 3d 274, 278-
284 (2009). It did not decide the standard-of-proof question, nor did it address any of respondents' other constitutional challenges. Id., at 276, n. 1.
The Government sought certiorari, and we granted its
request, limited to the question of Congress' authority
under Art. I, 8 of the Constitution.

So, the issue of due process, as well as a couple other constitutional issues raised were never reached. They need to reengage on these other constitutional challenges.

Sorry, no. "Ex post facto" has nothing to do with increasing the punishment after conviction.

Sorry, yes. Here's the legal definition, from Calder vs. Bull:

Calder v Bull (3 US 386 [1798]), in the opinion of Justice Chase:1st: Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action.2nd: Every law that aggravates a crime, or makes it greater than it was, when committed.3rd: Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.4th: Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender."

Read #3 there. Does this law change the punishment for the crime for which the criminal was convicted? Yes, it does. Is the punishment greater than that applied at conviction? Yes, it is. Are these two changes relevant to the law annexed to the crime when committed? Yes, they are.

Also, you're talking out your ass about parole and fighting, etc. These are new violations of existing laws and they get new punishments. They are in no way increases of the sentence for the original act. But this idiocy the supreme court passed is exactly that: the time in jail is extended indefinitely because of the original crime. No new crime has been committed. That lands this clearly in ex post facto territory.

This is not a bill of attainder, because it doesn't address specific people or groups of people.

No? What are "sex offenders", then, if not a group of people? It is a classing mechanism, is it not? Can you tell if you are in the class? Yes, certainly you can. Can you tell if you're not in the class? Yes, again, easily. So you're wrong again. Must not be your day, pal.

It's also (arguably) not a due process violation, because since it is a civil punishment and not a criminal one, the standard is lower than what is necessary to convict a person of a crime and send him to prison.

If you aren't given the right to face your accusers and defend yourself, and your jail term is extended consequent to the fact that you committed a criminal act, which is what is happening here, then it is a due process issue. You can't just wave your hands, mutter abracadabra, and magic up a civil violation for some clown in jail, now magically "re/deeper-guilty" of being a sex offender, murderer, or litterbug. Until or unless that person commits a new crime, they have every right in the world to walk the streets. Otherwise, you're engaging in prosecuting thought crime / future crime, which is utter bullshit.

But please get your facts and legal terminology straight before going off half-cocked based on your limited legal understanding.

Spoken by someone whose post was almost straight-through technically wrong, point by point, that is a fabulously amusing remark. You have a nice day now. I suggest you spend it reading the constitution, and then looking up the big words.

The Court does not reach or decide any claim that the statute or its application denies equal protection, procedural or substantive due process, or any other constitutional rights.

All the court said is that this falls within the federal government's powers, and doesn't violate the Tenth Amendment (which reserves some rights to the states). It didn't say it was okay on due process grounds. In fact, a district court did rule that the law was unconstitutional on due process grounds, and an appeals court upheld that (citations omitted):

The District Court, accepting two of the respondents’ [i.e., defendants'] claims, granted their motion to dismiss. It agreed with respondents that the Constitution requires proof beyond a reasonable doubt, and it agreed that, in enacting the statute, Congress exceeded its Article I legislative powers. On appeal, the Court of Appeals for the Fourth Circuit upheld the dismissal on this latter, legislative-power ground. It did not decide the standard-of-proof question, nor did it address any of respondents’ other constitutional challenges.

In short, the law has been struck down. The district court struck it down on two grounds. The government appealed both to the appeals court. The appeals court upheld the district court on one of the grounds without addressing the second one. The Supreme Court overruled the lower courts on that ground (legislative powers). The law is still struck down for violating due process, pending further appeals. This case has nothing to do with due process.